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[2016] ZAGPPHC 453
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Mundalamo v Road Accident Fund (45540/2015) [2016] ZAGPPHC 453 (1 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 45540/2015
DATE:
1 JUNE 2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
MUNDALAMO,
NYILO
BRIGHT
................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
....................................................................................
Defendant
JUDGMENT
VAN
DER WESTHUIZEN, A J
1.
The plaintiff is a young man, 30 years of age and of slender
build. He is presently employed as a general worker at Chesanyama,
Giyani.
2.
The defendant is the Road Accident Fund.
3.
The plaintiff was a passenger in his brother's motor vehicle on 25
July 2013 when it was involved in a collision with another
vehicle
and sustained injuries that will be dealt with below.
4.
The defendant has conceded the merits. There is an agreement
between the parties in respect of the rubrics: loss of past income;
future hospital and medical expenses.
5.
When the matter was called, there remained two rubrics. These
are: future loss of income; general damages. In respect of the
latter,
it was agreed between counsel representing the plaintiff and
the defendant respectively that the issue of general damages be
postponed
sine die,
pending a possible deferral thereof by the
defendant to the appropriate tribunal appointed in terms of the
Road
Accident Fund Act, No. 56 of 1996
.
6.
The only remaining issue to be decided relates to future loss
of earnings. In this regard, only the plaintiff testified and then
only about his present employment and the circumstances surrounding
it. Both counsel were content to rely on the reports by the
orthopaedic surgeon Dr. Ntlopi Mogoru, the Occupational Therapist
Mabongi Zonda and the Industrial Psychologist Ms Manoko Ratala
that
were handed into evidence by agreement. By agreement, the actuarial
report prepared by Munro Forensic Actuaries was also handed
into
evidence.
7.
The plaintiff alleges that he suffered the following injuries
as a result of the said accident:
(a)
Chest injury;
(b)Injury
to the right hand;
(c)
Injury to the throat; and
(d)
Injury to the spinal cord.
8.
The injuries mentioned under (a), (b) and (c) have left
permanent scarring.
9.
The plaintiff complains of head- and backache since the
accident that apparently interferes with is ability to work.
10.
The orthopaedic surgeon reports that on examination of the plaintiff,
no abnormalities were detected in respect of:
(a)
Cardiovascular system;
(b)
Respiratory system;
(c)
Central nervous system;
(d)
Musculoskeletal system;
(e)
Upper limbs;
(f)
Shoulders and arms;
(g)
Cervical spine;
(h)
Thoracolumber spine
(I)
Lower limbs;
(j)
Hips and thighs;
(k)
Knees and legs;
(I)
Ankles and feet.
11.
In respect of the abdomen it is reported that the abdomen is
soft, non-tender and no organomegally was detected.
12.
Dr. Mogoru reports that the only positive findings are the
scars referred to and that those scars are considered permanent and
serious
in terms of
section 5.2
of the narrative test. These are the
only injuries listed in the Serious Injury Assessment Report prepared
by Dr. Mogoru and submitted
to the defendant.
13.
He concludes that the plaintiff will be an equal competitor in
the unskilled labour market.
14.
The occupational therapist reports that according to the
hospital records submitted:
(a)
The requested x-rays of the plaintiff's back and neck were normal:
(b)
On arrival at the hospital after the accident, the plaintiff was
managed with analgesics, non-steroidal and anti-inflammatory
drugs
and dressing; and
(c)
Was issued with a soft collar.
15.
It is further recorded by the occupational therapist that the
plaintiff's current accident-related complaints are:
(a)
Back pain with heavy load handling;
(b)
Difficulties with heavy load handling; and
(c)
Headache, especially in hot weather, occasionally managed with
grandpa sachets or it comes and goes on its own.
16.
The occupational therapist reports in respect of the
assessment of physical function of the plaintiff as follows:
(a)
The upper limbs and lower limbs range of motion are within functional
limitations;
(b)
The plaintiff, in respect of the neck, back and sitting tolerance,
sat on a chair with no armrests for three hours with no postural
difficulties and no pain or fatigue reported during the assessment;
(c)
The plaintiff stood in an upright posture and with symmetry of the
shoulders and hips with no postural difficulties or pain
or fatigue
reported;
(d)
The plaintiff was able to walk with ease and with a normal gait,
trunk rotation, arm-swing and equal strides. No difficulties
were
reported with walking endurance.
17.
It is further reported by the occupational therapist that the
plaintiff did not meet the criteria set for the open labour market
on
manual dexterity tasks, but was able to handle medium to heavy loads
for short duration. It is reported that the plaintiff may
experience
difficulties in future in obtaining employment in the open labour
market falling within heavy to very heavy physical
demands.
The
occupational therapist concludes that the plaintiff retains the
physical capacity to participate in his current occupation till
normal retirement age.
19.
The industrial psychologist echoes the findings of the
occupational therapist.
20.
It is recorded by the industrial psychologist that the
plaintiff indeed had obtained a certificate in Human Resources from a
FET
College. This would place the plaintiff in the semi-skilled
labour market.
21.
From the industrial psychologist's report, it is gleaned that
the plaintiff s pre-accident employment history is as follows:
(a)
Security guard employed by GS Security during 2010 a contract based
employment;
(b)
Employed by Jet Stores during 2012 - 2013 firstly for canvassing and
thereafter as customer recruiter.
22.
Both the aforesaid occupations are classified under light
physical demands.
23.
The plaintiffs present occupation falls under the category
light to medium physical demands.
24.
In his evidence, the plaintiff faintly explained that he did
not return to his pre- accident employment, as the work he was doing
required him to be on his feet most of the time. He testified that
his current employer has taken pity on him and has thus employed
him.
Under cross-examination he testified that he had received oral
warnings, the gist of which was not explained.
25.
There is no direct evidence that the plaintiff is at risk
losing his current employment. No submissions were put forward why it
would be a possibility or even a probability that plaintiff stands to
lose his current employment.
26.
Considering that the plaintiff holds some other qualification
that puts him in the semi-skilled open market, no evidence was led
by
the plaintiff that he would have any difficulty in obtaining
employment in that sector of the labour market or in the category
light to medium physical demands.
27.
Neither the orthopaedic surgeon, nor the occupational therapist, nor
the industrial psychologist reported on any difficulty
in that
regard. The latter two only reportethat possibly difficulties may be
experienced in future in respect of the category heavy
to very heavy
physical demands, should the plaintiff lose his current employment.
There is no direct evidence that this would be
a possibility or a
probability for the plaintiff to exercise. As mentioned above, there
exists on the evidence no possibility or
even a probability that the
plaintiff stands to lose his current employment.
28.
Counsel for the plaintiff submitted that the orthopaedic surgeon is
not the appropriate person, nor is he so qualified, to comment
on the
plaintiff s employment capabilities. The orthopaedic surgeon has in
his report recorded that the plaintiff will be an equal
competitor in
the unskilled labour market. There is no merit in the aforesaid
submission of counsel for the plaintiff. It is indeed
the orthopaedic
surgeon's duty to comment on the plaintiff s ability to participate
in the open labour market in
view
of the accident-related
injuries and/or
sequelae
thereof.
29.
It was further submitted by counsel for the plaintiff that it is
clear from the reports of the occupational therapist and that
of the
industrial psychologist that plaintiff may suffer future loss of
earnings and hence the plaintiff is entitled to an award
in that
regard.
30.
As I have indicated above, the comments by the occupational therapist
and the industrial psychologist in respect of possible
loss of future
earnings, are made with reference to employment in the category heavy
to very heavy physical demands, a category
which the plaintiff's
previous and current employment does not fall. I have also indicated
that no direct evidence or otherwise
has been put forward that such
is a possibility or even a probability. There is no merit in that
argument of counsel for the plaintiff.
31.
The actuarial report presented by the plaintiff makes no
mention of any loss of future earnings. None appears to have been
foreseen.
32.
It follows that the plaintiff has failed to prove an actual
future loss of earnings or earning capacity or a real probability
thereof.
33.
I grant the following order:
(a)
Defendant shall pay to Plaintiff the amount of R98 400.00
(Ninety eight thousand four hundred rand) in respect of past loss of
earnings;
(b)
Defendant shall provide an undertaking in terms of
section
17(4)(a)
of Act 56 of 1996 for the costs of the future accommodation
of the patient in a hospital or nursing home or treatment of or
rendering
of a service or supplying of goods to him after such costs
have been incurred and upon proof thereof and where such costs relate
to the injuries sustained by the patient in the collision of 25 July
2013;
(c)
The issue of general damages is postponed
sine
die;
(d)
Defendant shall pay 75°/o of the Plaintiff's party and
party costs on the High Court scale;
(e)
The Plaintiff shall, in the event that costs are not agreed
between the Defendant and the Plaintiff's attorneys, serve a notice
of taxation on the Defendant's attorney of record and shall allow the
Defendant 14 (FOURTEEN) court days within which to make payment
of
such costs.
(f)
Following agreement on or taxation of the party and party costs, the
Plaintiff shall allow the Defendant 14 (FOURTEEN) court
days after
allocator has been made available to the Defendant, to make payment
of the taxed or agreed party and party costs.
(g)
The parties may submit further written submissions on the aforesaid
cost orders within 10 days of this order, failing which,
the cost
orders shall stand.
CJ
VAN DER WESTHUIZEN
ACTING
JUDGE OFTHE HIGH COURT
GAUTENG
DIVISION
On
behalf of Plaintiff:
.........
T.M Chauke
Instructed
by:
.......................
Mashambo Inc.
On
behalf of Defendant:
......
N Mhlongo
Instructed
by:
........................
T Chauke